ROADWAY POTHOLE ACCIDENT CASE WITHSTANDS DEFENSE LIABILITY SUMMARY JUDGMENT MOTION

Court: Supreme Court, Appellate Division, Second Department, New York

Case: Scott v. City of New York

Date: Oct. 25, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens accident attorney)

Comment: Auto accidents that are caused by potholes in the road are very difficult to win. It is notoriously hard to make a successful case against The City of New York (or other municipality, depending where the accident occurs). To win, an accident victim needs to show either "prior written notice" -- almost impossible to prove because such notice is rarely given or rarely given properly or, if it is, the claim is against the City of New York, it hardly ever finds the record of written notice - or that the defect that caused the pothole was created when the work was done. In other words, that some kind of work on the roadway was done incorrectly at the time of the paving. This, too, is nearly impossible to prove.

In this case, plaintiff was injured when the car in which he was a passenger hit a pothole, went out-of-control, and hit the metal pillar of an overhead New York City subway line. The injured plaintiff sues the company that did roadway construction work in the area. The construction company moved for summary judgment but blew its own motion by submitting with its motion papers a "street opening permit" issued for work in the area for before a time the accident and in the same year as the accident.

The appeals court points out that the motion is defective and plaintiff's opposition papers therefore need not even be considered and the defense motion automatically fails. So, plaintiff withstands the defense summary judgment motion and wins the right to take his roadway accident claim to a jury.

As is often the case, no hint is given in this case as to the accident victim's injury.

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RELATED POSTS:

NEW YORK STATE NOT LIABLE FOR NOT CLEANING ROADWAY WHERE DEBRIS WENT THROUGH ACCIDENT VICTIM'S WINDSHIELD (Posted By Queens accident attorney Gary E. Rosenberg on Nov 14, 2011)

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In a consolidated action to recover damages for personal injuries, the defendants Granite Halmar Construction Company, Inc., Granite Halmar/Schiavone J.V., Schiavone Construction, Inc., and Robert Schiavone appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Velasquez, J.), dated August 14, 2009, as denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff allegedly sustained personal injuries on the morning of October 26, 2002, when the car in which he was riding allegedly drove into a pothole in the roadway of McDonald Avenue in Brooklyn, causing the car's driver to lose control of the vehicle and the car to collide with a pillar which supported the overhead tracks of the elevated "F" subway line. The plaintiff subsequently commenced this action, alleging, inter alia, that the appellants created the subject roadway defect when they performed construction work in the area. The appellants moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, contending that they did not create the ruts in the roadway which the plaintiff assumed caused the accident. However, in support of their motion, the appellants submitted, among other things, a street opening permit which had been issued to the defendant Granite Halmar/Schiavone J.V. earlier in 2002, for the block where the accident occurred. Accordingly, the appellants failed to eliminate all triable issues of fact as to whether they created the roadway defect and, thus, failed to establish their prima facie entitlement to judgment as a matter of law (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642). Under these circumstances, it is not necessary to consider the sufficiency of the plaintiff's opposition papers (see Tchjevskaia v. Chase, 15 A.D.3d 389, 790 N.Y.S.2d 175). Accordingly, the Supreme Court properly denied the appellants' motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

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